EFF Moves to Quash Subpoena in Copyright Troll’s Retaliatory Lawsuit

Yesterday, we filed a motion to quash a subpoena seeking the identity of the blogger behind Die Troll Die, a website dedicated to “News and Views Involving Copyright Trolls & John/Jane Does.”

For years, Die Troll Die has been covering news about Prenda Law and its predecessor Steele Hansmeier PLLC, amoung many others. Prenda Law is a porn troll. This means that it looks for IP addresses that allegedly downloaded adult films via BitTorrent, seeks to subpoena the ISP for the contact information of the account holder associated with that IP address, and then threatens to name the alleged infringer in a copyright lawsuit, right next to the embarrassing title of a pornographic film. Or just settle, for thousands of dollars.

The tactics of Prenda Law and its main attorneys, Paul Duffy, John Steele, Paul Hansmeier, and Brett Gibbs have faced well-deserved criticism, from the blogs and from the bench. EFF has been working on the issue for some time, filing amicus briefs and offering expert testimony. Nevertheless, Prenda Law and its affiliated attorneys have filed hundreds of cases, against tens of thousands of people, and, according to John Steele, made millions of dollars.

Over the last few months, the tide has begun to turn. A federal judge in Florida dismissed a case for “attempted fraud on the courts,” and another federal judge in Los Angeles called Prenda Law’s tactics a “legal shakedown,” “essentially an extortion scheme,” and opened an inquiry on whether to issue sanctions.

And Prenda Law’s trolling was not the only issue: serious questions began to arise about Prenda Law’s purported clients using invented names and fictitious signatures on key legal documents — in particular, Alan Cooper accused Prenda of stealing his identity, and holding him out as a front man for their shell company plaintiffs.

In February, while facing the sanctions inquiry from the Los Angeles federal court and a deposition in San Francisco, Prenda Law filed a specious lawsuit against a number of its critics and opponents, claiming it was defamed by the Die Troll Die website, as well as another criticism site, Fight Copyright Trolls. The lawsuit, one of three nearly identical suits filed by Prenda Law, Paul Duffy and John Steele respectively, also targeted Alan Cooper — the witness against them in the sanctions hearing — and his attorney Paul Godfread.

Prenda Law then issued subpoenas, seeking to identify its pseudonymous opponents. One subpoena went to Automattic, the operator of Wordpress, which hosts Fight Copyright Troll and Die Troll Die, seeking to identify everyone who even read the blogs. Automattic rightly refused to respond, citing the many legal defects in the subpoena.

Another subpoena went to Wild West Domains, a subsidiary of GoDaddy and the domain name registrar for dietrolldie.com. Wild West Domains provided Die Troll Die with notice of the subpoena, but said it would comply unless Die Troll Die formally objected. Die Troll Die retained EFF to represent it, and yesterday we filed the motion to quash. (EFF also represents Fight Copyright Trolls).

Die Troll Die has a Constitutional right to speak its mind, and give its opinion, however negative, of Prenda Law. Courts protect that right by requiring litigants to show they have a good case before unveiling critics. This, Prenda Law does not have.

As we explain in the brief, Prenda Law’s claims are meritless. It is opinion, not defamation, to call someone an “a$$hat” or call their business model “repulsive,” and it's flat out ridiculous to claim that the Prenda Law (a corporation) has been libeled by allegations of fornication and adultery. Seriously: Prenda Law asserted that calling the close business relationship between various companies and people “incestuous” was a literal accusation of incest, and therefore libel.

Furthermore, Die Troll Die, as the operator of a message board, is not liable for the comments on the website, even if they were defamatory. This is bedrock law, upon which the every website that allows user content depends.

In short, Prenda Law does not have a valid claim against the defendants. It is simply trying to retaliate against its critics.

In the meantime, things have been going very poorly for Prenda Law. In March, they failed to show up at the first sanctions hearing (transcript) in Los Angeles, where Judge Otis Wright heard damning evidence of fraud on the courts. Judge Wright ordered them to appear in person on April 2 (transcript), and the Prenda Law lawyers elected to assert their Fifth Amendment rights against self-incrimination rather than respond to the judge’s inquiry about "attorney misconduct such misconduct which I think brings discredit to the profession."

And today, Paul Duffy made an appearance in a Prenda case before the federal court in San Francisco. The question was basically how badly should Prenda Law's purported client AF Holdings lose — whether they would lose for now, but have a chance to refile if they got their house in order, or whether they should lose forever, and have to pay the defendant's attorneys' fees. The Court wanted to know whether Prenda's attempts to dismiss the case were in bad faith, to avoid further questions about ownership.